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128orItt  ^eate  Jfounbation 


Vol.  VI 


1923 


No.  6 


The  Work  of  the 

Permanent  Court  of  International 
Justice  during  its  First 
Two  Years 


By  MANLEY  O.  OTDSON 

Bemis  Professor  of  International  Law 
at  the  Harvard  Law  School 


Published  Bimonthly  by  the 

WORLD  PEACE  FOUNDATION 
40  Mt.  Vernon  Street,  Boston 
Price,  5 cents  per  copy;  25  cents  per  year 


HHorlJi  pparp  3FounJiattnn 

%0Btan.  jlaBBari;uBBttB 

'FOUNDED  IN  1910  BY  EDWIN  GINN 


The  corporation  is  constituted  for  the  purpose  of  educating  the  people 
of  all  nations  to  a full  knowledge  of  the  waste  and  destructiveness  of  war, 
its  evil  effects  on  present  social  conditions  and  on  the  well-being  of  future 
generations,  and  to  promote  international  justice  and  the  brotherhood 
of  man;  eind,  generally,  by  every  practical  means  to  promote  peace 
and  good  will  among  all  mankind. — By-laws  of  the  Corporation. 

It  is  to  this  patient  and  thorough  work  of  education,  through  the  school, 
the  college,  the  church,  the  press,  the  pamphlet  and  the  book,  that  the 
World  Peace  Foundation  addresses  itself. — Edwin  Ginn. 

The  idea  of  force  can  not  at  once  be  eradicated.  It  is  useless  to  believe 
that  the  nations  can  be  persuaded  to  disband  their  present  armies  and 
dismantle  their  present  navies,  trusting  in  each  other  or  in  the  Hague 
Tribunal  to  settle  any  possible  differences  between  them,  unless,  first, 
some  substitute  for  the  existing  forces  is  provided  and  demonstrated 
by  experience  to  be  adequate  to  protect  the  rights,  dignity  and  territory 
of  the  respective  nations.  My  own  belief  is  that  the  idea  which  underlies 
the  movement  for  the  Hague  Court  can  be  developed  so  that  the  nations 
can  be  persuaded  each  to  contribute  a small  percentage  of  their  militciry 
forces  at  sea  and  on  land  to  form  an  International  Guard  or  Police  Force. — 
Edwin  Ginn. 


^Incorporated  under  the  laws  of  Massachusetts,  July  12,  1910,  as  the  International  School 
of  Peace.  Name  changed  to  World  Peace  Foundation,  December  22,  1910. 


LEAGUE  OF  NATIONS 

Published  Bimonthly  by 

WORLD  PEACE  FOUNDATION 

40  MT.  VERNON  STREET,  BOSTON,  MASS. 

The  subscription  price  is  25c.  per  year  in  advance. 

Prices  in  quantities  on  application. 

General  Secretary,  Edward  Cummings. 
Corresponding  Secretary,  and  Librarian,  Denys  P.  Myers. 


CONTENTS 


PAGE 


States  Which  Have  Signed  the  Protocol  of  the  Permanent  Court 

OF  International  Justice 504 

Judges  of  the  Permanent  Court  of  International  Justice  ....  505 

Dates  in  the  History  of  the  Permanent  Court  of  International 

Justice 506 

Advisory  Opinions  and  Judgment  of  the  Permanent  Court  of 
International  Justice: 

First  Advisory  Opinion 507 

Second  Advisory  Opinion 509 

Third  Advisory  Opinion 510 

Fourth  Advisory  Opinion 511 

Fifth  Advisory  Opinion 515 

First  Judgment 517 

Sixth  Advisory  Opinion 519 

Seventh  Advisory  Opinion 521 

Eighth  Advisory  Opinion 524 


STATES  WHICH  HAVE  SIGNED  THE  PROTOCOL 

OF  THE 

PERMANENT  COURT  OF  INTERNATIONAL  JUSTICE  ^ 


Albania 

Japan 

Australia 

Latvia 

Austria 

Liberia 

Belgium 

Lithuania 

Bolivia 

Luxemburg 

Brazil 

Netherlands 

British  Empire 

New  Zealand 

Bulgaria 

Norway 

Canada 

Panama 

Chde 

Paraguay 

China 

Persia 

Colombia 

Poland 

Costa  Rica 

Portugal 

Cuba 

Rumania 

Czechoslovakia 

Salvador 

Denmark 

Serb-Croat-Slovene  State 

Esthonia 

Siam 

Finland 

South  Africa,  Union  of 

France 

Spain 

Greece 

Sweden 

Haiti 

Switzerland 

Hungary 

Uruguay 

India 

Venezuela 

Italy 

Total:  47 

^ Prior  to  May  1,  1924. 


JUDGES  OF  THE  PERMANENT  COURT  OF 
INTERNATIONAL  JUSTICE  ^ 

Elected  September  1^-15, 1921,  to  serve  nine  years 

Judge  National  of 

Rafael  Altamira  y Crevea Spain 

Dionisio  Anzilotti Italy 

Epitacio  da  Silva  Pessoa  ^ Brazil 

Antonio  Sdncbez  de  Bustaimante  ....  Cuba 
Robert  Bannatyne  Viscount  Finlay.  . . . Great  Britain 

Hans  Max  Huber Switzerland 

Bernard  Cornells  Johannes  Loder,  President  Netherlands 

John  Bassett  Moore United  States 

Didrik  Galtrup  Gjedde  Nyholm  ....  Denmark 

Yorozu  Oda Japan 

Charles  Andre  Weiss,  Vice-President  . . . France 

Deputy  Judges 

Frederik  Valdemar  Nikolai  Beichmann  . . Norway 

Mikhailo  Jovanovich Serb-Croat-Slovene 

State 

Demitrie  Negulesco Rumania 

Wang  Ch’ung-hui  . • „ China 

Registrar — M.  Ake  Hammarskjold  (Sweden) 

* On  May  1,  1924. 

® Elected  September  10,  1923,  to  succeed  Ruy  Barbosa  (d.  March  1,  1923). 


DATES  IN  THE  HISTORY  OF  THE  PERMANENT 
COURT  OF  INTERNATIONAL  JUSTICE 

1.  February  13,  1920 — The  Council  of  the  League  of  Nations 
sets  up  a Committee  of  Jurists  to  draft  the  Statute  of  a Court. 

2.  June  16,  1920 — The  Committee  of  Jurists  meets  at  The 
Hague. 

3.  August  5,  1920 — Draft  of  the  Statute  submitted  by  the 
Committee  of  Jurists  to  the  Council. 

4.  December  13,  1920 — Draft  Statute  as  amended  approved 
by  the  First  Assembly  of  the  League  of  Nations. 

5.  December  16, 1920 — Statute  annexed  to  a special  treaty,  called 
the  Protocol  of  Signature,  signed  by  forty-seven  states. 

6.  September  16,  1921 — The  first  election  of  Judges  completed. 

7.  January  30,  1922 — The  Court  meets  at  The  Hague  for  its 
first  session. 

8.  March  24,  1922 — Rules  of  Court  promulgated. 

9.  May  12,  1922 — The  Court  is  opened  to  all  states  in  the  world. 

10.  June  15,  1922 — The  Court  meets  at  The  Hague  for  its  second 
session,  and  hands  dovm  three  advisory  opinions. 

11.  January  8,  1923 — The  Court  meets  at  The  Hague  for  its 
third  session  and  hands  down  a fourth  advisory  opinion. 

12.  February  24,  1923 — President  Harding  asks  the  Senate  to 
advise  and  consent  to  the  adhesion  to  the  Court  Protocol  by 
the  United  States. 

13.  June  15,  1923 — The  Court  meets  at  The  Hague  for  its  fourth 
session  and  hands  down  three  advisory  opinions  and  one 
judgment. 

14.  September  10,  1923 — ^Judge  Pessoa  of  Brazil  was  elected  to  fill 
the  vacancy  caused  by  Judge  Barbosa’s  death. 

15.  November  18,  1923 — The  Court  meets  at  The  Hague  for 
its  fifth  session,  and  hands  down  one  advisory  opinion. 

16.  December  6,  1923 — President  Coolidge  commends  the  proposed 
adhesion  by  the  United  States  to  the  Protocol  of  Signature 
to  the  Court  to  the  favorable  consideration  of  the  Senate. 

17.  June  15, 1924 — ^The  Court  will  meet  at  The  Hague  for  its  sixth 
session. 


THE  WORK  OF  THE  PERMANENT  COURT  OF  INTER- 
NATIONAL JUSTICE  DURING  ITS  FIRST  TWO  YEARS  ^ 


By  Manley  O.  Hudson 

BEMIS  PROFESSOR  OF  INTERNATIONAL  LAW  AT  THE  HARVARD  LAW 

SCHOOL 

First  Advisory  Opinion  of  the  Permanent  Court  of  Inter- 
national Justice. — Nomination  of  Delegates  to  the 
International  Labor  Conference^ 

A member  of  the  International  Labor  Organization  is  not  boimd  to 
consult  the  largest  employers’  or  workers’  organization,  in  selecting 
its  delegates  to  the  International  Labor  Conference,  where  other 
organizations  total  more  members. 

On  May  12,  1922,  the  Council  of  the  League  of  Nations  adopted 
a resolution  requesting  the  Permanent  Court  of  International 
Justice  to  give  an  advisory  opinion  on  the  following  question: 
“Was  the  Workers’  Delegate  for  the  Netherlands  at  the  third 
session  of  the  International  Labor  Conference  nominated  in 
accordance  with  the  provisions  of  paragraph  3 of  Article  389 
of  the  Treaty  of  Versailles?”  The  question  came  before  the 
Court  at  its  first  regular  session  on  June  15,  1922.  Briefs  were 
presented  to  the  Court  on  behalf  of  the  Netherlands  Government, 
the  International  Labor  Office,  and  the  Netherlands  General 
Confederation  of  Trades  Unions.  Oral  arguments  were  heard 
on  behalf  of  the  British  and  Netherlands  Governments,  the 
International  Federation  of  Trades  Unions,  the  International 
Federation  of  Christian  Trades  Unions,  and  the  International 
Labor  Office. 

’ Reprinted  from  articles  in  the  American  Bar  Association  Journal  for  February, 
March  and  April,  1924. 

^ Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  1. 

The  publications  of  the  Permanent  Court  of  International  Justice  may  be  ob- 
tained from  the  World  Peace  Foundation,  40  Mt.  Vernon  St.,  Boston,  Mass. 


508 


WOELD  PEACE  FOUNDATION 


At  the  third  session  of  the  International  Labor  Conference, 
held  at  Geneva  from  October  25  to  November  18,  1921,  a protest 
was  made  against  the  acceptance  by  the  Conference  of  the  creden- 
tials of  the  workers’  delegate  named  by  the  Netherlands  Govern- 
ment. At  previous  sessions  of  the  Conference,  the  workers’ 
delegate  named  by  the  Netherlands  Government  had  been  nom- 
inated in  agreement  with  the  Netherlands  Confederation  of 
Trades  Unions.  But  the  workers’  delegate  to  the  third  session 
in  1921  was  nominated  in  agreement  with  the  Confederation 
of  Catholic  Trades  Unions,  the  Confederation  of  Christian  Trades 
Unions,  and  the  Netherlands  General  Confederation  of  Trades 
Unions,  though  not  in  agreement  with  the  Netherlands  Confedera- 
tion of  Trade  Unions.  The  last-named  organization  had  a member- 
ship of  218,596  trade  unionists;  the  other  organizations  had  a 
total  membership  of  282,455  trade  unionists,  though  no  one 
had  a membership  in  excess  of  155,642. 

Article  389  of  the  Treaty  of  Versailles  requires  that  non-govern- 
ment delegates  to  the  International  Labor  Conference  be  “chosen 
in  agreement  with  the  industrial  organizations,  if  such  organiza- 
tions exist,  which  are  most  representative  of  employers  or  work- 
people, as  the  case  may  be,  in  their  respective  countries.”  On 
October  22,  1921,  the  Netherlands  Confederation  of  Trades 
Unions  protested  to  the  International  Labor  Office  that  the 
Netherlands  Government  had  not  fulfilled  this  requirement. 
The  International  Labor  Conference  decided  to  admit  the  delegate 
nominated  by  the  Netherlands  Government,  in  spite  of  this 
protest.  But  at  the  same  time  the  Conference  adopted  a resolu- 
tion calhng  upon  the  Governing  Body  of  the  International  Labor 
Office  to  request  the  Council  of  the  League  of  Nations  to  obtain 
from  the  Permanent  Court  of  International  Justice  an  opinion 
as  to  the  proper  interpretation  of  Article  389.  The  Council 
of  the  League  of  Nations  therefore  acted  at  the  suggestion  of  the 
Governing  Body  in  requesting  the  opinion. 

The  Court  unanimously  concluded  that  the  Netherlands  Govern- 
ment’s nomination  had  complied  with  Article  389  of  the  Treaty 
of  Versailles.  The  main  ground  of  the  opinion  was  that  in  a 
country  where  there  are  several  organizations  of  workers  or  em- 
ployers, all  of  these  organizations  may  be  taken  into  consideration 
in  the  nomination  of  a workers’  or  employers’  delegate,  and  not 


WORLD  PEACE  FOUNDATION 


509 


merely  that  one  which  has  the  largest  membership,  even  though 
the  one  may  be  the  “most  representative.” 

This  opinion  was  communicated  to  the  Council  of  the  League 
of  Nations  and  transmitted  by  the  Council  to  the  Director  of 
the  International  Labor  OflBce.  It  constitutes  a distinct  clari- 
fication of  the  Labor  Part  of  the  Peace  Treaties,  and  in  the  future 
it  will  greatly  assist  the  governments  in  nominating  non-govern- 
ment delegates  to  the  International  Labor  Conference. 


Second  Advisory  Opinion  of  the  Permanent  Court  of  Inter- 
national Justice. — ^Agricultural  Labor  and  the  Inter- 
national Labor  Organization^ 

The  competence  of  the  International  Labor  Organization  extends 
to  the  conditions  of  labor  of  persons  employed  in  agriculture. 

On  May  12,  1922,  the  Council  of  the  League  of  Nations  adopted 
a resolution  requesting  the  Permanent  Court  of  International 
Justice  to  give  an  advisory  opinion  on  the  following  question: 
“Does  the  competence  of  the  International  Labor  Organization 
extend  to  the  international  regulation  of  the  conditions  of  labor 
of  persons  employed  in  agriculture?”  The  question  came  before 
the  Court  at  its  first  regular  session  on  June  15,  1922.  Oral 
statements  were  made  before  the  Court  on  behalf  of  the  British, 
French,  Portuguese  and  Hungarian  Governments,  and  on  be- 
half of  the  International  Labor  Office,  the  International  Agricul- 
tural Commission  and  the  International  Federation  of  Trades 
Unions. 

At  the  first  session  of  the  International  Labor  Conference  in 
Washington,  in  1919,  it  had  been  decided  to  place  on  the  agenda 
of  a future  session  the  subject  of  agricultural  labor.  At  the 
third  session  in  1921,  three  items  relating  to  agricultural  labor 
were  included  in  the  agenda.  The  question  of  competence  was 
raised  before  the  Conference  by  the  French  Government.  The 
International  Labor  Conference  deelared  itself  competent  on 
October  27,  1921,  by  a vote  of  74  to  20.  Later  the  Conferenee 
adopted  several  measures  dealing  with  the  protection  of  agricul- 

^Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  2. 


510 


WOELD  PEACE  FOUNDATION 


tural  workers.  It  was  the  French  Government  which  brought 
the  matter  to  the  Council  of  the  League  of  Nations  in  1922,  and 
this  was  done  without  first  raising  the  question  in  the  Governing 
Body  of  the  International  Labor  OflSce. 

On  August  12,  1922,  the  Court  decided  to  reply  to  the  Council 
of  the  League  of  Nations  that  the  competence  of  the  International 
Labor  Organization  does  extend  to  international  regulation  of 
the  conditions  of  persons  employed  in  agriculture.  A majority 
of  the  judges  found  the  language  of  the  Treaty  of  Versailles 
free  from  any  ambiguity  on  this  point.  It  was  said  that  “every 
argument  used  for  the  exclusion  of  agriculture  might  with  equal 
force  be  used  for  the  exclusion  of  navigation  and  fisheries.” 

Judge  Weiss  (France)  and  Deputy-Judge  Negulesco  (Rumania) 
declared  that  they  were  unable  to  concur  in  the  opinion  given 
by  the  Court. 

The  opinion  was  duly  transmitted  to  the  Council  of  the  League 
of  Nations  and  by  the  Council  to  the  French  Government. 


Third  Advisory  Opinion  of  the  Permanent  Court  of  Interna- 
tional Justice. — Agricultural  Production  and  the 
International  Labor  Organization^ 

The  competence  of  the  International  Labor  Organization  extends 
to  agricultural  production  only  in  so  far  as  conditions  of  labor  are 
concerned. 

On  July  18,  1922,  the  Council  of  the  League  of  Nations  adopted 
a resolution  requesting  the  Permanent  Court  of  International 
Justice  to  give  an  advisory  opinion  on  the  following  question: 
“Does  examination  of  proposals  for  the  organization  and  develop- 
ment of  methods  of  agricultural  production,  and  of  other  ques- 
tions of  a like  nature,  fall  within  the  competence  of  the  Interna- 
tional Labor  Organization?”  The  Court  was  in  session  at  the 
time  this  resolution  was  adopted,  and  was  duly  notified  of  the 
request.  Arguments  were  heard  on  behalf  of  the  French  Govern- 
ment and  the  International  Labor  OflSce. 

The  question  had  been  first  raised  in  the  Council  of  the  League 
of  Nations  by  a letter  of  the  French  Government  of  June  13,  1922. 

1 Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  3. 


WORLD  PEACE  FOUNDATION 


511 


The  Director  of  the  International  Labor  Office  stated  that  the 
International  Labor  Organization  did  not  claim  to  have  com- 
petence as  to  agricultural  production.  Negotiations  between 
the  International  Labor  Office  and  the  International  Institute  of 
Agriculture  had  brought  a common  view  to  the  two  organizations 
as  to  the  proper  delimitation  of  their  respective  spheres  of  action. 

On  August  12,  1922,  the  Permanent  Court  of  International 
Justice  expressed  the  unanimous  opinion  that  while  the  organiza- 
tion and  development  of  “means  of  production”  had  not  been  in- 
cluded in  the  sphere  of  the  International  Labor  Organization,  it 
was  not  necessary  that  the  Organization  “totally  exclude  from 
its  consideration  the  effect  upon  production  of  measures  which 
it  may  seek  to  promote  for  the  benefit  of  the  workers.”  It 
was  made  clear  that  “the  consideration  of  methods  of  organizing 
and  developing  production  from  the  economic  point  of  view  is 
in  itself  alien  to  the  sphere  of  activity  marked  out  for  the  In- 
ternational Labor  Organization  by  Part  XIII  of  the  Treaty  of 
Versailles.” 

This  opinion  was  duly  communicated  to  the  Council  of  the 
League  of  Nations  and  by  the  Council  to  the  French  Government. 
With  the  two  preceding  opinions,  it  has  assisted  the  Labor  Organ- 
ization to  chart  its  course,  and  has  thus  contributed  to  the  easier 
co-operation  of  the  nations  engaged  in  considering  and  adopt- 
ing uniform  labor  legislation. 


Fourth  Advisory  Opinion  of  the  Permanent  Court  of  Inter- 
national Justice. — Nature  of  Dispute  About  National- 
ity Decrees  ^ 

The  British-French  dispute  over  nationality  decrees  in.  Tunis  and 
Morocco  is  not  by  internatioiiaJ  law  solely  a matter  of  domestic 
jurisdiction  within  paragraph  8 of  Article  15  of  the  Covenant,  though 
nationality  questions  in  general  fall  within  a state’s  domestic  juris- 
diction. 

On  October  4,  1922,  the  Council  of  the  League  of  Nations 
addressed  itself  to  the  following  item  which  had  been  placed  on 
its  agenda  at  the  request  of  the  British  Government  on  August  11, 

’^Reported  in  the  Publications  of  the  Permanent  Court  of  Internationa! 
Justice,  Series  B,  No.  4. 


512 


WORLD  PEACE  FOUNDATION 


1922:  “Dispute  between  France  and  Great  Britain  as  to  the 
nationality  decrees  issued  in  Tunis  and  Morocco  (French  Zone) 
on  November  8,  1921,  and  their  application  to  British  subjects, 
the  French  government  having  refused  to  submit  the  legal  ques- 
tions involved  to  arbitration.”  The  Council  took  note  of  “friendly 
conversations”  which  had  taken  place  between  representatives 
of  the  British  and  French  Governments,  and  pursuant  to  an 
agreement  between  the  parties,  adopted  the  following  resolution: 

(a)  The  Council  decides  to  refer  to  the  Permanent  Court  of  Inter- 
national Justice,  for  its  opinion,  the  question  whether  the  dispute  referred 
to  above  is  or  is  not  by  international  law  solely  a matter  of  domestic 
jurisdiction  (Article  15,  paragraph  8,  of  the  Covenant); 

(5)  And  it  requests  the  two  Governments  to  bring  this  matter  before 
the  Permanent  Court  of  International  Justice,  and  to  arrange  with  the 
Court  with  regard  to  the  date  on  which  the  question  can  be  heard  and 
with  regard  to  the  procedure  to  be  followed; 

(c)  Furthermore,  the  Council  takes  note  that  the  two  Governments 
have  agreed  that,  if  the  opinion  of  the  Court  upon  the  above  question 
is  that  it  is  not  solely  a matter  of  domestic  jurisdiction,  the  whole  dispute 
will  be  referred  to  arbitration  or  to  judicial  settlement  under  conditions 
to  be  agreed  between  the  Governments. 

On  October  4,  1922,  the  Secretary-General  of  the  League  of 
Nations  transmitted  to  the  Registrar  of  the  Permanent  Court 
of  International  Justice  a copy  of  the  above  resolution  “for  the 
information  of  the  Permanent  Court  of  International  Justice.” 
This  was  not  treated  as  a request  for  an  advisory  opinion  under 
Article  72  of  the  Rules  of  Court,  but  such  a request  was  sent  by 
the  Seeretary-General  on  November  6,  1922.  The  matter  was 
before  the  Court  as  a request  for  an  advisory  opinion,  although 
at  various  stages  in  the  proceedings  it  was  referred  to  by  counsel 
as  if  Great  Britain  and  France  were  parties  before  the  Court  in 
a dispute  between  them. 

The  arrangements  for  calling  an  extraordinary  session  of  the 
Court  were  made  by  the  President  with  the  aid  of  suggestions 
from  the  British  and  French  Governments.  The  two  Govern- 
ments fixed  upon  November  25, 1922,  as  the  date  for  the  submission 
of  cases,  and  December  23,  1922,  as  the  date  for  the  submission 
of  counter-cases.  When  the  Court  met  in  extraordinary  session 
to  consider  the  matter  on  January  8,  the  British  Government 


WORLD  PEACE  FOUNDATION 


513 


was  represented  by  Mr.  George  Mounsey,  as  Agent,  and  by  the 
Right  Hon.  Sir  Douglas  Hogg,  K.C.,  M.P.,  His  Britannic  Maj- 
esty’s Attorney-General,  and  the  Right  Hon.  Sir  Ernest  Pollock, 
Bart.,  K.B.E.,  K.C.,  M.P.,  as  Counsel.  The  French  Government 
was  represented  by  M.  Merillon  as  Agent  and  Professor  de  Lapra- 
delle  as  Agent-Adjoint.  Each  Government  submitted  a case  and 
a counter  case,  and  the  Court  also  heard  oral  arguments  from 
both.  The  arguments  before  the  Court  consumed  five  days, 
and  during  the  extraordinary  session  January  8 to  February  7, 
the  Court  held  twenty  meetings. 

The  dispute  had  arisen  as  a consequence  of  the  promulgation 
by  the  French  Government  of  decrees  converting  certain  British 
subjects  in  Tunis  and  Morocco  (French  zone)  into  French  citizens, 
with  the  consequence  that  the  French  Government  began  to 
enforce  a liabihty  for  military  service  in  the  French  army.  Ex- 
tended negotiations  between  the  British  and  French  Governments 
had  been  conducted  before  the  original  communication  of  the 
question  to  the  Council  of  the  League  of  Nations.  In  these 
negotiations.  Great  Britain  had  relied  upon  various  treaties  apply- 
ing to  the  French  protectorates  over  Tunis  and  Morocco,  espe- 
cially the  Anglo-French  arrangement  of  September  18,  1897, 
containing  a most-favored-nation  clause.  But  the  British  insist- 
ence had  failed  to  produce  any  modification  in  the  French  decrees, 
and  the  French  Government  had  contended  throughout  that 
the  matter  was  not  open  to  settlement  by  diplomatic  negotiation. 

The  argument  before  the  Court  was  addressed  to  the  single 
question  of  the  nature  of  the  dispute,  and  the  Court  very  con- 
scientiously confined  itself  to  the  hmits  of  that  question.  The 
British  Government  contended  that  the  existence  and  abrogation 
of  various  treaties  were  involved,  as  well  as  the  construction  of 
the  terms  of  such  treaties,  with  the  result  that  the  question  must 
be  one  of  an  international  nature.  The  French  Government 
contended  on  the  other  hand,  that  “the  sovereign  right  of  a 
nation  to  legislate  upon  nationality  questions  within  its  own 
territory  governs  the  situation  in  Tunis  and  Morocco  under 
French  protectorate  as  in  France  itself.”  It  was  insisted  that  the 
French  protectorates  in  Tunis  and  Morocco  demanded  the  “pro- 
gressive assimilation  of  the  customs  and  laws  of  the  protectorate 
to  those  of  the  protecting  country.”  France  refused  to  admit  that 


514 


WORLD  PEACE  FOUNDATION 


there  was  any  limit  on  her  power  in  this  respect  as  a result  of 
any  applicable  international  engagement. 

On  February  7,  1923,  the  Court  handed  down  a unanimous 
opinion  holding  that  the  dispute  “is  not,  by  international  law, 
solely  a matter  of  domestic  jurisdiction  (Article  15,  paragraph  8 
of  the  Covenant).”  In  the  first  place,  it  was  held  that  the  lan- 
guage of  the  Covenant  was  not  to  be  given  “an  extensive  interpre- 
tation.” And  the  following  passage  from  the  opinion  of  the 
Court  seems  to  indicate  a due  regard  for  the  infiuence  which  its 
pronouncements  are  likely  to  have  on  future  conduct: 

The  question  whether  a certain  matter  is  or  is  not  solely  within  the 
jurisdiction  of  a state  is  an  essentially  relative  question;  it  depends  upon 
the  development  of  international  relations.  Thus,  in  the  present  state 
of  international  law,  questions  of  nationality  are,  in  the  opinion  of  the 
Court,  in  principle  within  this  reserved  domain. 

It  was  clearly  held  that  a dispute  does  not  achieve  an  interna- 
tional character  merely  as  a consequence  of  its  being  brought 
before  the  Council  of  the  League  of  Nations,  nor  as  a consequence 
of  appeals  by  a party  to  the  dispute  to  engagements  of  an  interna- 
tional character.  The  Court  found  the  Aaland  Islands  case 
authority  for  this  proposition.  The  French  protectorates  of 
Tunis  and  Morocco  were  examined  in  great  detail,  and  it  was 
concluded  that  while  a state  possesses  exclusive  jurisdiction  in 
regard  to  nationality  questions  in  its  own  territory,  it  is  a question 
of  international  law  whether  such  a jurisdiction  extends  over 
protected  territory  as  well.  The  French  Government  had  con- 
tended that  certain  treaties  relied  upon  by  Great  Britain  had 
lapsed  as  a result  of  the  principle  of  rebus  sic  stantibus.  This 
was  held  by  the  Court  to  be  a question  of  international  law. 
The  effect  of  British  declarations  in  the  past  with  regard  to  Tunis 
was  also  found  to  be  involved,  and  this  was  clearly  a question  of 
international  law.  Great  Britain’s  reliance  on  the  most-favored- 
nation  clause  in  the  Anglo-French  arrangement  of  September  18, 
1897,  had  also  raised  a question  of  international  law. 

It  is  notable  that  the  French  judge  on  the  Court,  Judge  Weiss, 
concurred  in  the  opinion  that  for  these  numerous  reasons  the 
dispute  was  not  by  international  law  solely  a matter  of  domestic 
jurisdiction. 


WORLD  PEACE  FOUNDATION 


515 


When  the  opinion  was  announced  on  February  7,  the  Agent 
for  the  French  Government  immediately  declared  that  its  con- 
clusions were  accepted  by  the  French  Government  and  that  the 
French  Government  desired  the  case  to  be  submitted  on  its 
merits  to  the  Permanent  Court  of  International  Justice.  This 
later  proposal  was  not  immediately  agreed  to  by  the  British 
Government,  however.  When  the  Court  again  met  on  June  15, 
1923,  the  French  and  British  Governments  informed  the  President 
of  an  amicable  arrangement  concluded  between  them  on  May  24, 
the  result  of  which  was  to  compromise  the  matter  in  such  a way 
as  to  call  for  no  further  proceedings  before  the  Court.  The 
French  Government  had  agreed  to  permit  certain  British  nationals 
to  decline  French  nationality,  on  the  understanding  that  the 
privilege  of  declination  did  not  extend  to  succeeding  generations. 
It  was  stated  in  the  arrangement  that  neither  government  would 
abandon  its  point  of  view,  nor  would  the  arrangement  itself 
form  a precedent  for  the  future.  The  differences  between  the 
Governments,  therefore,  having  lost  their  practical  importance, 
did  not  call  for  further  proceedings  before  the  Permanent  Court 
of  International  Justice. 


Fifth  Advisory  Opinion  of  the  Permanent  Court  of  Interna- 
tional Justice — Dispute  between  Finland  and  Russia^ 

Where  an  advisory  opinion  on  the  legal  effect  of  treaty  provisions 
would  involve  a prejudging  of  a dispute  with  reference  to  the  execu- 
tion of  such  treaty  provisions,  the  Court  will  not  give  such  an  advisory 
opinion  unless  both  parties  submit  to  the  Court’s  jurisdiction. 

On  April  21,  1923,  the  Council  of  the  League  of  Nations  adopted 
a resolution  requesting  the  Permanent  Court  of  International 
Justice  to  give  an  advisory  opinion  on  the  following  question: 
“Do  Articles  10  and  11  of  the  Treaty  of  Peace  between  Finland 
and  Russia,  signed  at  Dorpat,  on  October  14th,  1920,  and  the 
annexed  Declaration  of  the  Russian  Delegation  regarding  the 
autonomy  of  Eastern  Carelia,  constitute  engagements  of  an 
international  character  which  place  Russia  under  an  obligation 

’Reported  in  Publications  of  the  Permanent  Court  of  International  Justice,  Series 
B,  No.  1. 


516 


WORLD  PEACE  FOUNDATION 


to  Finland  as  to  the  carrying  out  of  the  provisions  contained 
therein?” 

The  question  came  before  the  Court  at  its  fourth  session  which 
began  on  June  15,  1923.  Notice  of  the  request  had  been  cir- 
culated as  required  by  Article  73  of  the  Rules  of  Court,  and  by 
special  decision  notice  was  sent  to  the  Soviet  Government  of 
Russia.  Various  documents  were  submitted  to  the  Court  by 
the  Council  and  by  Finland,  and  a representative  of  the  Finnish 
Government  was  heard  in  oral  argument.  The  Russian  People’s 
Commissary  for  Foreign  Affairs,  M.  Tchitcherin,  sent  the  Court 
a long  telegram  stating  that  his  government  found  it  “impossible 
to  take  any  part  in  the  proceedings”  which  it  regarded  as  “with- 
out legal  value  either  in  substance  or  in  form.” 

In  its  opinion  announced  on  July  23,  1923,  the  Court  found 
that  an  “acute  controversy”  existed  between  Finland  and  Russia 
with  regard  to  the  Declaration  which  had  been  made  at  Dorpat 
concerning  Eastern  Carelia.  “The  Finnish  Government  main- 
tain that  it  forms  part  of  the  contract  between  the  two  countries 
and  that  the  Treaty  was  signed  on  the  terms  that  the  Declara- 
tion was  as  binding  as  the  Treaty  itself.  The  Soviet  Government 
maintain  that  the  Declaration  was  not  by  way  of  contract,  but 
was  only  declaratory  of  an  existing  situation  and  made  merely 
for  information.”  To  attempt  to  deal  with  this  controversy  even 
to  the  hmited  extent  of  giving  an  advisory  opinion,  “would  be 
substantially  equivalent  to  deciding  the  dispute  between  the 
parties.” 

But  the  Court  found  it  to  be  “well  established  in  international 
law  that  no  State  can  without  its  consent  be  compelled  to  submit 
its  disputes  with  other  States  either  to  mediation  or  to  arbitra- 
tion, or  to  any  other  kind  of  pacific  settlement.”  The  Court 
intends  to  abide  by  this  principle  very  strictly.  “The  Court, 
being  a Court  of  Justice,  cannot,  even  in  giving  advisory  opinions, 
depart  from  the  essential  rules  guiding  their  activity  as  a Court.” 
So  in  this  case  the  Court  regretfully  declined  to  give  any  opinion. 
Yet  it  took  account  of  the  long  history  of  the  dispute,  and  added 
that  it  did  not  “regret  that  the  question  has  been  put”  by  the 
Council  of  the  League  of  Nations,  for  “all  must  now  realize  that 
the  Council  has  spared  no  pains  in  exploring  every  avenue  which 
might  possibly  lead  to  some  solution.” 


WORLD  PEACE  FOUNDATION 


517 


Four  of  the  judges  did  not  share  the  conclusions  of  the  ma- 
jority, however.  These  conclusions  are  rather  curiously  referred 
to  as  an  “opinion,”  and  are  published  in  the  “Collection  of  Ad- 
visory Opinions,”  though  in  reality  they  amount  to  a refusal  to 
give  an  opinion.  This  refusal  is  a clear  indication  of  the  judges’ 
determination  that  the  Hmitations  surrounding  judicial  action 
are  to  be  rigidly  observed,  even  in  the  exercise  of  their  function 
of  giving  advisory  opinions. 


First  Judgment  of  the  Permanent  Court  of  International 
Justice — Case  of  the  S.  S.  Wimbledon,  involving  free- 
dom OF  THE  Kiel  Canal  ^ 

Article  380  of  the  Treaty  of  Versailles  of  June  28,  1919,  forbids 
Germany’s  applying  to  the  Kiel  Canal  a neutrality  order  which  would 
close  the  canal  to  a British  vessel  under  French  charter  carrying 
munitions  to  Danzig  for  transshipment  to  Poland  during  a war  between 
Poland  and  Russia. 

On  January  16,  1923,  the  British,  French,  Italian  and  Japanese 
Governments  made  “appHcation”  to  the  Permanent  Court  of 
International  Justice  asking  for  judgment  whether  the  German 
Government  “is  present  or  absent,”  that  “the  German  authorities 
wrongfully  refused  on  March  21,  1921,  free  access  to  the  Kiel 
Canal  of  the  steamship  ‘Wimbledon,’  ” and  that  reparation  be 
awarded  for  the  loss  incurred  by  the  Wimbledon.  The  apphca- 
tion  set  forth  the  provision  in  the  Treaty  of  Versailles  (Art.  380) 
that  “The  Kiel  Canal  and  its  approaches  shall  be  maintained 
free  and  open  to  the  vessels  of  commerce  and  war  of  all  nations 
at  peace  with  Germany  on  terms  of  entire  equality.”  To  vest 
jurisdiction  in  the  Court,  the  applicant  Powers  relied  on  Article 
386  of  the  Treaty  of  Versailles,  though  Germany  seems  to  have 
been  entirely  willing  to  go  before  the  Court  and  did  not  at  any 
time  contest  the  jurisdiction.  ^ 

The  Court  was  seised  of  the  case  when  it  met  on  June  15,  1923. 
Under  Article  31  of  the  Court  Statute,  a German  national,  Pro- 

’ Reported  in  the  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  A,  No.  1. 

^See  18  American  Journal  of  International  Law,  p.  11. 


518 


WOHLD  PEACE  FOUNDATION 


lessor  Walter  Scliiicking  of  the  University  of  Berlin,  had  been 
named  by  Germany  to  sit  as  a judge  ad  hoc.  On  June  28,  Poland’s 
application  to  “intervene”  was  approved.  The  applicant  Powers 
had  submitted  a case  on  March  17;  Germany  a counter-case  on 
April  20;  the  applicants  a reply  on  May  18;  and  Germany  a re- 
joinder on  June  15.  Between  July  5 and  July  10  oral  arguments 
were  heard  by  the  agents  of  each  of  the  six  Powers  that  were 
parties,  the  German  agent  speaking  in  the  German  language 
and  the  other  agents  speaking  in  French  or  English. 

The  facts  were  admitted,  though  there  was  some  controversy 
as  to  whether  Poland  and  Russia  were  still  at  war  on  March  21, 
1921,  when  the  Wimbledon  was  excluded  from  the  Kiel  Canal. 
The  chief  problem  related  to  the  construction  to  be  placed  on 
Article  380  of  the  Treaty  of  Versailles.  In  the  judgment  handed 
down  on  August  17,  1923,  the  Court  found  “that  the  terms  of 
Article  380  are  categorical  and  give  rise  to  no  doubt.”  The  con- 
clusion followed  “that  the  canal  has  ceased  to  be  an  internal  and 
national  navigable  waterway,  the  use  of  which  by  vessels  of 
states  other  than  the  riparian  state  is  left  entirely  to  the  discre- 
tion of  that  state,  and  that  it  has  become  an  international  water- 
way intended  to  provide  under  treaty  guarantee  easier  access 
to  the  Baltic  for  the  benefit  of  all  nations  of  the  world.”  Hence 
the  Court  found  Germany  under  an  obligation  to  keep  the  Kiel 
Canal  “open,  on  a footing  of  equality,  to  all  vessels,  without 
making  any  distinction  between  war  vessels  and  vessels  of  com- 
merce, but  on  one  express  condition,  namely,  that  these  vessels 
must  belong  to  nations  at  peace  with  Germany.” 

The  Court  referred  to  the  “precedents  afforded  by  the  Suez 
and  Panama  Canals”  which  in  its  opinion  “invalidate  in  advance 
the  argument  that  Germany’s  neutrality  would  have  necessarily 
been  imperilled  if  her  authorities  had  allowed  the  passage  of  the 
Wimbledon.^'  The  Canal  has  become  so  “assimilated  to  natural 
straits”  that  even  “the  passage  of  a belligerent  man-of-war  does 
not  compromise  the  neutrality  of  the  sovereign  State  under  whose 
jurisdiction  the  waters  in  question  lie.”  It  was  not  necessary 
to  say  whether  the  war  between  Poland  and  Russia  had  termi- 
nated, for  in  any  case  Germany  had  a duty  by  treaty  to  allow  the 
Wimbledon  to  pass.  Her  refusal  was  therefore  wrongful,  and 
Germany  “is  responsible  for  the  loss  occasioned  by  this  refusal 


WORLD  PEACE  FOUNDATION 


519 


and  must  compensate  the  French  Government”  acting  on  behalf 
of  the  French  firm  of  charterers.  The  amount  of  compensation 
awarded  was  140,749.35  francs,  as  against  165,749.35  francs 
claimed. 

Three  of  the  judges  dissented,  including  the  German  national 
judge.  Judges  Anzilotti  (Italy)  and  Huber  (Switzerland)  thought 
that  the  “legal  status  of  the  Kiel  Canal  resembles  that  of  the 
internal  navigable  waterways  of  international  concern”;  that 
Germany’s  obligation  to  maintain  the  Canal  free  and  open  “does 
not  exclude  her  right  to  take  the  measures  necessary  to  protect 
her  interests  as  a belligerent  or  neutral  power”;  and  that  Germany’s 
neutrality  regulation  in  this  case  was  not  “an  arbitrary  act  cal- 
culated unnecessarily  to  impede  traffic.”  Judge  Schiicking  (Ger- 
many) thought  that  a servitude  had  been  imposed  on  the  Kiel 
Canal,  which  called  therefore  for  a restrictive  interpretation;  and 
in  this  case  the  passage  of  the  Wimbledon  would  not  have  been 
“compatible  with  Germany’s  duties  as  a neutral  toward  Russia.” 

The  decision  is  a notable  one  for  several  reasons.  It  is  the 
first  contested  case  to  come  before  the  Permanent  Court  of  Interna- 
tional Justice,  all  the  other  cases  having  come  by  requests  for 
advisory  opinions.  It  is  the  first  case  in  which  a specially  chosen 
national  judge  has  participated.  It  will  constitute  for  the  future  a 
valuable  addition  to  international  law  as  to  the  Kiel  Canal  and  as 
to  the  use  of  all  inter-oceanic  canals  in  time  of  war. 


Sixth  Advisory  Opinion  of  the  Permanent  Court  of  Inter- 
national Justice — Protection  of  German  Settlers  in 
Poland  ^ 

Poland’s  international  obligations  under  the  Minorities  Treaty 
of  June  28,  1919,  involve  the  protection  of  German  colonists  sent 
into  German  Poland  before  the  war,  requiring  Poland  to  respect 
contracts  and  leases  made  by  the  German  Government  with  these 
colonists;  and  the  position  taken  by  Poland  after  the  war  was  not 
in  conformity  with  its  international  obligations. 

On  February  3,  1923,  the  Council  of  the  League  of  Nations 
adopted  a resolution  requesting  the  Permanent  Court  of  Interna- 

* Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  6. 


520 


WORLD  PEACE  FOUNDATION 


tional  Justice  to  give  an  advisory  opinion  on  two  questions:  (1) 
whether  Poland’s  refusal  to  recognize  contracts  and  leases  made  by 
certain  German  colonists  with  the  German  Colonization  Com- 
mission before  the  end  of  the  war,  involved  an  international 
obligation  within  the  competence  of  the  League  of  Nations  under 
the  Polish  Minorities  Treaty  of  June  28,  1919;  and,  (2)  if  so, 
whether  Poland’s  position  with  respect  to  these  contracts  and 
leases  was  in  conformity  with  her  international  obhgations. 

The  matter  came  before  the  Court  when  it  met  for  its  fourth 
session  on  June  15,  1923.  Various  documents  were  submitted 
by  the  Council  of  the  League  of  Nations  and  by  the  Polish  and 
German  Governments.  Oral  arguments  were  heard  also  by  the 
representatives  of  the  Polish  Government,  Count  Rostoworski  and 
Sir  Ernest  Pollock,  formerly  Attorney-General  of  Great  Britain, 
and  by  the  representative  of  Germany,  M.  Schiffer,  ex-minister 
of  Justice. 

The  Polish  Government  had  ousted  two  classes  of  German 
colonists:  those  holding  under  contracts  entitling  the  colonist 
to  receive  title  to  the  land,  where  the  definitive  conveyance  had 
not  been  completed  until  after  the  armistice  of  November  11, 
1918;  and  those  holding  under  leases  for  which  such  contracts 
had  been  substituted  after  the  date  of  the  Armistice.  On  May 
17,  1922,  the  Council  of  the  League  of  Nations  had  requested 
Poland  to  suspend  such  measures. 

In  its  opinion  announced  on  September  10,  1923,  the  Court 
first  considered  the  competence  of  the  League  of  Nations  to  deal 
with  the  matter,  under  the  provisions  of  the  Minorities  Treaty. 
In  this  connection,  it  held  that  “the  fact  that  no  racial  dis- 
crimination appears  in  the  text  of  the  law  of  July  14,  1920,  and 
that  in  a few  instances  the  law  applies  to  non-German  Polish 
nationals  who  took  as  purchasers  from  original  holders  of  German 
race,  makes  no  substantial  difference.  . . . There  must  be 
equality  in  fact  as  well  as  ostensible  legal  equahty  in  the  sense 
of  the  absence  of  discrimination  in  the  words  of  the  law.”  It 
then  held  that  the  German  Government  “is  to  be  considered  as 
having  continued  to  be  competent  to  undertake  transactions 
falling  within  the  normal  administration  of  the  country”  in 
the  period  between  November  11,  1918,  when  the  Armistice  was 
signed,  and  January  10,  1920,  when  the  Treaty  of  Versailles 
came  into  force. 


WOKLD  PEACE  FOUNDATION 


521 


Proceeding  then  to  examine  the  legal  character  of  the  contracts 
under  which  the  settlers  held,  the  Court  found  that  they  were 
enforceable  contracts  which  gave  interests  in  the  land  not  unlike 
the  interests  of  a holder  of  an  equitable  title  in  Anglo-American 
law.  “A  purchaser  acquired  a jus  ad  rem,  and  after  auflassung 
had  a jus  in  re.”  And  it  was  careful  to  announce  that  “the  fact 
that  there  was  a political  purpose  behind  the  colonisation  scheme 
cannot  affect  the  private  rights  acquired  under  the  law.”  Such 
private  rights,  whether  acquired  by  contract  or  by  lease,  “do  not 
cease  on  a change  of  sovereignty,”  nor  is  any  treaty  provision 
required  to  preserve  them.  No  provisions  in  the  Treaty  of 
Versailles  had  prohibited  Germany’s  dealing  with  such  rights 
in  the  ordinary  normal  way,  even  after  the  Armistice,  and  hence 
Poland  was  bound  to  respect  such  dealing  on  taking  over  the 
governance  of  the  territory.  The  Court  therefore  pronounced 
that  “the  position  adopted  by  the  Polish  Government  . . . was 
not  in  conformity  with  its  international  obligations.” 

When  the  question  later  came  before  the  Council  of  the  League 
of  Nations  on  December  17,  1923,  Poland  announced  that  her 
policy  would  be  re-shaped  to  accord  with  the  law  enunciated  by 
the  Court,  and  agreed  to  compensate  colonists  already  ousted 
illegally  and  suspend  further  proceedings  against  other  colonists. 


Seventh  Advisory  Opinion  of  the  Permanent  Court  of 
International  Justice — Acquisition  of  Polish  National- 
ity BY  German  Settlers^ 

Under  the  Treaty  for  the  Protection  of  Minorities  in  Poland,  the 
Council  of  the  League  of  Nations  is  competent  to  deal  with  questions 
as  to  acquisition  of  Polish  nationality  by  German  Settlers,  and  Article 
4 of  the  Treaty  makes  habitual  residence  of  parents  at  the  date  of 
birth  of  settlers  concerned,  but  not  at  any  later  date,  a condition  of 
acquiring  nationality. 

On  July  7,  1923,  the  Council  of  the  League  of  Nations  adopted 
a resolution  requesting  the  Permanent  Court  of  International 
Justice  to  give  an  advisory  opinion  on  the  competence  of  the 

* Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  7. 


522 


WOKLD  PEACE  FOUNDATION 


League  of  Nations  under  the  Minority  Treaty  between  the  Prin- 
cipal Allied  and  Associated  Powers  and  Poland,  and  on  the  proper 
interpretation  to  be  placed  on  Article  4 of  that  Treaty.  The 
Court  was  in  session  when  the  resolution  was  adopted,  and  became 
seised  of  the  questions  on  receipt  of  a letter  from  the  Secretary- 
General  of  the  League,  dated  July  11,  1923. 

Notice  of  the  request  was  sent  to  all  Members  of  the  League  of 
Nations,  to  the  United  States,  Ecuador  and  the  Hedjaz  as  states 
mentioned  in  the  Annex  to  the  Covenant,  and  to  the  German 
Government.  The  decision  of  the  Court  to  send  notice  to  Ger- 
many has  evoked  some  adverse  criticism  on  the  ground  that 
Germany  is  not  a party  in  interest  with  respect  to  a question 
arising  under  the  Minority  Treaty  between  the  Allied  Powers  and 
Poland,  even  though  the  question  relates  to  a Germanic  group 
in  Poland.  But  the  Court’s  action  would  seem  to  have  been  a 
proper  exercise  of  discretion,  even  though  Article  73  of  the  Rules 
of  Court  did  not  require  it.  Oral  arguments  were  heard  on  behalf 
of  Poland  and  of  Germany,  but  Rumania’s  request  to  be  heard 
came  too  late. 

The  question  was  originally  raised  by  a petition  of  November  12, 
1921,  of  the  Germanic  League  of  Bydgoszcz  submitted  to  the 
Council.  Article  4 of  the  Minority  Treaty  provides  that 

Poland  admits  and  declares  to  be  Polish  nationals  ipso  facto  and  without 
the  requirement  of  any  formality  persons  of  German,  Austrian,  Hun- 
garian or  Russian  nationality  who  were  born  in  the  said  territory  of 
parents  habitually  resident  there,  even  if  at  the  date  of  the  coming  into 
force  of  the  present  treaty  they  are  not  themselves  habitually  resident 
there. 

The  Polish  Government  had  decided  to  treat  certain  persons 
who  were  former  German  nationals  as  not  having  acquired  Polish 
nationality  and  as  continuing  to  possess  German  nationality, 
because  their  parents  were  not  habitually  resident  in  the  terri- 
tory, both  on  the  date  of  birth  of  the  person  concerned  and  on 
the  date  when  the  Minority  Treaty  came  into  force  on  January  10, 
1920.  When  the  question  was  raised  in  the  Council  of  the  League 
of  Nations,  Poland  contended  that  it  was  not  within  the  juris- 
diction of  the  Council,  which  was  limited  to  questions  concerning 
minorities  consisting  of  Polish  nationals.  It  was  necessary  for 
the  Court  therefore  to  deal  with  this  basic  question  of  jurisdiction, 


WORLD  PEACE  FOUNDATION 


523 


as  well  as  with  the  proper  interpretation  of  the  nationality  pro- 
visions of  the  treaty. 

In  the  unanimous  opinion  handed  down  on  September  15, 
1923,  the  Court  held  that  the  matter  was  within  the  competence 
of  the  League  of  Nations.  The  statesmanship  of  the  Court  is 
evidenced  by  its  general  appreciation  of  the  nature  of  the  minorities 
treaties,  and  the  office  which  they  are  designed  to  serve  in  the 
postwar  world: 

The  Minorities  Treaties  in  general,  and  the  Polish  Treaty  in  particular, 
have  been  concluded  with  new  States,  or  with  States  which,  as  a result 
of  the  war,  have  had  their  territories  considerably  enlarged,  and  whose 
population  was  not  therefore  clearly  defined  from  the  standpoint  of 
political  allegiance.  One  of  the  first  problems  which  presented  itself  in 
connection  with  the  protection  of  the  minorities  was  that  of  preventing 
these  States  from  refusing  their  nationality,  on  racial,  religious  or  linguistic 
grounds,  to  certain  categories  of  persons,  in  spite  of  the  link  which  effec- 
tively attached  them  to  the  territory  allocated  to  one  or  other  of  these 
States.  It  is  clearly  not  a purely  fortuitous  circumstance  that  the  Treaties 
for  the  protection  of  minorities  contain  provisions  relating  to  the  acquisi- 
tion of  nationality.  Again,  the  fact  that  in  some  cases  these  provisions 
merely  repeat,  either  in  their  entirety  or  in  part,  principles  laid  down 
in  the  Peace  Treaties,  would  appear  to  be  explained  by  the  intention  to 
extend  to  these  principles  the  guarantee  of  the  League  of  Nations,  no 
matter  what  points  of  difference  or  resemblance  there  may  be  between 
these  treaties. 

Lord  Finlay  concurred  in  the  conclusions  of  the  Court,  but  he 
would  have  gone  further  in  his  definition  of  the  minorities  pro- 
tected by  the  treaty: 

It  therefore  appears  that  while  such  elementary  rights  as  those  of 
life  and  liberty  are  secured  to  all  inhabitants,  there  are  a great  many 
rights  secured  to  Polish  ressortissants  only,  and  it  is  with  regard  to  such 
rights  that  the  question  of  unfair  treatment  of  minorities  must  arise 
in  the  immense  majority  of  cases.  Of  course,  it  is  conceivable  that  there 
might  be  a case  in  which  protection  for  life  and  liberty  was  refused  to 
some  unpopular  minority  of  inhabitants.  In  that  case  the  minority 
would  be  one  of  a mass  of  inhabitants,  whether  Polish  nationals  or  not; 
but  such  cases  must  be  rare.  The  point  will  arise  in  the  immense  majority 
of  cases  with  regard  to  such  Articles  as  7,  8 and  9 and  the  rights  which 
they  confer  on  all  Polish  ressortissants  including  German  or  other 
minorities. 


524 


WORLD  PEACE  FOUNDATION 


Having  decided  the  question  of  competence,  the  Court  pro- 
ceeded to  hold  that  the  Polish  Government  had  improperly 
required  that  parents  of  the  persons  in  question  should  be  living 
in  the  territory  on  January  10,  1920,  as  well  as  on  the  date  of  birth 
of  their  children.  It  was  of  the  opinion  that  the  clause  of  the 
Treaty  quoted  “leaves  little  to  be  desired  in  the  nature  of  clear- 
ness.” And  it  was  pointed  out  that  the  interpretation  contended 
for  by  Poland  would  have  the  effect  of  depriving  of  Polish  na- 
tionality a person  born  in  Poland  of  parents  habitually  resident 
there  at  the  time,  simply  because  his  parents  were  dead  on  January 
10,  1920. 

The  advisory  opinion  was  duly  transmitted  to  the  Secretary- 
General  of  the  League  of  Nations,  and  on  September  22,  1923,  the 
Council  “adopted”  it.  The  matter  has  since  been  the  subject  of 
negotiation  between  Poland  and  Germany,  though  Poland  ap- 
pears to  be  disposed  to  acquiesce  in  the  decision  of  the  Court. 


Eighth  Advisory  Opinion  of  the  Permanent  Court  of  In- 
national Justice — The  Jaworzina  Boundary  Question 
Between  Poland  and  Czechoslovakia^ 

A decision  by  the  Conference  of  Ambassadors  with  reference  to 
the  boimdary  between  Poland  and  Czechoslovakia,  accepted  by 
both  States,  was  definitive  and  the  question  was  not  reopened  by  later 
negotiations. 

On  September  27,  1923,  the  Council  of  the  League  of  Nations 
adopted  a resolution  requesting  the  Permanent  Court  of  Interna- 
tional Justice  to  give  an  advisory  opinion  on  the  question  whether 
the  delimitation  of  the  frontier  between  Poland  and  Czecho- 
slovakia in  the  region  known  as  the  Spisz  district  (Jaworzina) 
was  still  open,  or  whether  it  should  be  considered  as  settled  by  a 
definitive  decision  of  the  Conference  of  Ambassadors.  The 
resolution  set  forth  the  case  of  the  Polish  Government  and  the 
case  of  the  Czechoslovak  Government,  and  the  Council  requested 
the  two  governments  concerned  to  be  prepared  to  assist  the  Court 
by  furnishing  it  with  relevant  doeuments  and  information.  A 

1 Reported  in  Publications  of  the  Permanent  Court  of  International  Justice, 
Series  B,  No.  8. 


WOKLD  PEACE  FOUNDATION 


525 


dossier  communicated  to  the  Council  by  the  Conference  of  Ambas- 
sadors was  transmitted  to  the  Court. 

The  Court  became  seised  of  the  matter  on  receipt  of  a letter 
from  the  Secretary-General  of  the  League  of  Nations,  dated 
September  29,  1923.  In  view  of  the  urgency,  the  Court  convened 
in  extraordinary  session  on  November  12,  1923.  This  session 
continued  from  November  12  to  December  6,  when  the  opinion 
was  handed  down.  The  Polish  Government  was  represented  by 
M.  Mrozowski,  President  of  the  Supreme  Court  of  Poland,  and 
the  Czechoslovak  Government  by  Professor  Eircmar  and  Dr. 
Krno.  Oral  arguments  on  both  sides  were  heard  on  November  14. 

The  question  of  the  boundary  between  Poland  and  Czecho- 
slovakia had  long  been  before  the  Conference  of  Ambassadors 
at  Paris,  which  on  July  27,  1923,  decided  to  lay  the  difficulties 
before  the  Council  of  the  League  and  to  ask  the  Council  to  recom- 
mend a solution.  It  was  stated  that  the  Governments  represented 
in  the  Conference  of  Ambassadors  would  have  no  objection  should 
the  Council  see  fit  to  ask  the  opinion  of  the  Court  of  International 
Justice  on  the  legal  questions  involved.  It  had  been  decided  on 
September  27,  1919,  that  a plebiscite  should  be  held  in  the  Spisz 
district,  but  so  many  difficulties  developed  that  the  Spa  Conference 
in  July,  1920,  suspended  this  arrangement.  On  July  28,  1920, 
the  Conference  of  Ambassadors  at  Paris  had  decided  upon  a 
boundary  line  between  Poland  and  Czechoslovakia,  subject  to 
modifications  of  detail  by  a delimitation  commission.  This 
decision  had  been  accepted  by  both  Poland  and  Czechoslovakia. 
Later  negotiations  had  been  undertaken,  however,  which  con- 
tinued for  three  years  without  reaching  any  different  result. 
So  it  became  necessary  to  determine  whether  the  decision  of  the 
Conference  of  Ambassadors  of  July  28,  1920,  had  a final  character. 

The  opinion  of  the  Court  was  unanimous  that  the  decision  of 
July  28, 1920,  was  to  be  treated  as  definitive.  “The  final  character 
of  the  decision  referred  to  above  is  also  shown,  with  special  clear- 
ness, by  the  declaration  appended  to  the  decision,  which  is  signed 
by  the  plenipotentiaries  of  Poland  and  Czechoslovakia.”  Not 
only  was  “the  task  entrusted  to  the  Conference  of  Ambassadors 
by  the  Supreme  Council  fulfilled  by  the  decision  of  the  Conference, 
but  the  decision  itself  was  put  into  execution.”  It  was  necessary 
for  the  Court  to  review  the  entire  histoiy  of  the  negotiations 


526 


WORLD  PEACE  FOUNDATION 


which  followed  the  Spa  Conference.  Throughout  this  review, 
the  Court  showed  a disposition  to  take  account  of  the  complexities 
of  the  postwar  situation  and  the  difficulties  in  stabilizing  it. 

“When,  as  a result  of  the  European  War  and  the  dissolution  of  the 
Austro-Hungarian  Monarchy,  Poland  and  Czechoslovakia  were  re- 
established as  independent  States,  their  frontiers  were,  generally  speaking, 
indicated  by  the  same  historical  and  ethnological  factors  which  had  led  to 
their  reconstitution. 

The  necessity  remained,  however,  either  for  a formal  pronouncement 
with  regard  to  the  extent  of  the  territories  respectively  allocated  to  two 
States  above-mentioned  or  for  a settlement  of  territorial  questions  in 
regions  where,  owing  to  special  circumstances,  the  historical  or  ethnolog- 
ical frontier  remained  uncertain  or  met  with  difficulties  which  prevented 
the  parties  concerned  from  voluntarily  accepting  it. 

The  task  of  ensuring  the  recognition  of  the  frontiers  of  the  new  States 
and  of  settling  disputes  which  might  arise  between  them  was  undertaken 
by  the  Principal  Allied  and  Associated  Powers  represented  in  the  Supreme 
Council  then  sitting  at  Paris.” 

But  the  two  States  were  held  to  have  given  to  the  decision  of  the 
Conference  of  Ambassadors  “over  and  above  the  authority  pos- 
sessed by  a decision  of  the  Principal  Allied  and  Associated  Powers,” 
the  “force  of  a contractual  obligation.” 

A question  also  arose  as  to  the  effect  of  later  interpretations 
placed  on  the  decision  by  the  Conference  of  Ambassadors  itself. 
The  Court  refused  to  admit  that  the  Conference  was  competent 
to  change  the  clear  effect  of  a decision  by  a later  interpretation. 

“The  duties  of  the  Conferenee,  as  has  already  been  pointed  out  by  the 
Court,  had  some  points  in  common  with  those  of  an  Arbitrator  entrusted 
by  two  States  with  the  settlement  of  a frontier  dispute  between  them. 
But  in  the  absence  of  an  express  agreement  between  the  parties,  the 
Arbitrator  is  not  competent  to  interpret,  still  less  modify  his  award  by 
revising  it.  The  decision  of  July  28th,  which  was  accepted  by  the  Polish 
and  Czechoslovak  Governments,  contains  no  mention  of  an  agreement 
of  this  kind.” 

Through  long  and  tedious  negotiations  by  different  officials,  the 
Court  traced  the  history  of  the  efforts  to  reach  a settlement  of 
the  boundary  question  without  its  aid.  In  the  end,  it  was  deter- 
mined that  these  negotiations  did  not  have  the  effect  of  upsetting 
the  original  decision  of  the  Conference  of  Ambassadors  on  July  28, 


WORLD  PEACE  FOUNDATION 


527 


1920,  which  is  defiiiitive.  It  was  pointed  out,  however,  that  this 
decision  should  be  applied  in  its  entirety,  with  authority  in  the 
delimination  commission  to  make  modifications  of  detail  in 
marking  out  the  actual  boundary. 

The  advisory  opinion  was  duly  transmitted  to  the  Council  of 
the  League  of  Nations  which  met  in  Paris  in  December,  1923. 
An  effort  has  since  been  made  to  reach  agreement  between  Poland 
and  Czechoslovakia  on  the  basis  of  the  Court’s  conclusions. 


\ 


/ . 


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Additional  Volume.  The  S.  S.  “Wimbledon”.  Docu- 
ments of  the  written  procedure.  158  p.  25  cm.  Cloth 

bovmd  1.60 

No.  4.  Fourth  (Extraordinary)  Session  (November  13th-Decem- 
ber  6th,  1923).  Documents  relating  to  Advisory  Opinion 
No.  8 (Jaworzina).  438  double  pages.  25  cm.  Cloth 
bound  5.00 

Series  D 

Acts  and  documents  concerning  the  organisation  of  the  Court. 

No.  1.  Statute  and  Rules  of  the  Permanent  Court  of  Inter- 
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No.  2.  Preparation  of  the  Rules  of  Court. — Minutes  of 
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with  annexes.  616  p.  32  cm.  Cloth  bound  9.00 

No.  3.  Extracts  from  International  Agreements  affecting  the 
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bound 1.50 


STATES 

ACCEPTING 

THE  COURT— 47 

Albania 

Esthonia 

Panama 

Australia 

Finland 

Paraguay 

Austria 

France 

Persia 

Belgium 

Greece 

Poland 

Bolivia 

Haiti 

Portugal 

Brazil 

Hungary 

Rumania 

British  Empire 

India 

Salvador 

Bulgaria 

Italy 

Serb-Croat-Slovene 

Canada 

Japan 

State 

Chile 

Latvia 

Siam 

China 

Liberia 

South  Africa,  Union 

Colombia 

Lithuania 

Spain 

Costa  Rica 

Luxemburg 

Sweden 

Cuba 

Netherlands 

Switzerland 

Czechoslovakia 

New  Zealand 

Uruguay 

Denmark 

Norway 

Venezuela 

ACCEPTANCE  OF  THE  OPTIONAL  CLAUSE~21 

Austria 

Finland 

Norway 

Brazil 

Haiti 

Panama 

Bulgaria 

Latvia 

Portugal 

China 

Liberia 

Salvador 

Costa  Rica 

Lithuania 

Sweden 

Denmark 

Luxemburg 

Switzerland 

Esthonia 

Netherlands 

Uruguay 

